Coal-fired plants still possible

FERC Hydropower Licensing Dispute centers on FERC authority, Clean Water Act compliance, state water quality certifications, Federal Power Act timelines, and Army Corps dams on West Virginia's Monongahela River licenses.

Key Points

An inquiry into FERC's licensing process and state water quality authority for hydropower at Monongahela River dams.

✅ Questions on omitted state water quality conditions

✅ Debate over starting Clean Water Act certification timelines

✅ Potential impacts on states' rights and licensing schedules

As federal lawmakers, including Democrats pressing FERC, plan to consider a bill that would expand Federal Energy Regulatory Commission (FERC) licensing authority, questions emerged on Tuesday about the process used by FERC to issue two hydropower licenses for existing dams in West Virginia.

In a letter to FERC Chairman Neil Chatterjee, Democratic leaders of the House Energy and Commerce Committee, as electricity pricing changes were being debated, raised questions about hydropower licenses issued for two dams operated by the U.S. Army Corps of Engineers on the Monongahela River in West Virginia.

U.S. Reps. Frank Pallone Jr. (D-NJ), the ranking member of the Subcommittee on Energy, Bobby Rush (D-IL), the ranking member of the Subcommittee on Environment, and John Sarbanes (D-MD), amid Maryland clean energy enforcement concerns, questioned why FERC did not incorporate all conditions outlined in a West Virginia Department of Environmental Protection water quality certificate into plans for the projects.

“By denying the state its allotted time to review this application and submit requirements on these licenses, FERC is undermining the state’s authority under the Clean Water Act and Federal Power Act to impose conditions that will ensure water quality standards are met,” the letter stated.

The House of Representatives was slated to consider the Hydropower Policy Modernization Act of 2017, H.R. 3043, later in the week. The measure would expand FERC authority over licensing processes, a theme mirrored in Maine's transmission line debate over interstate energy projects. Opponents of the bill argue that the changes would make it more difficult for states to protect their clean water interests.

West Virginia has announced plans to challenge FERC hydropower licenses for the dams on the Monongahela River, echoing Northern Pass opposition seen in New Hampshire.

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Texas Blackout Liability Ruling clarifies appellate court findings in Houston, citing deregulated energy markets, ERCOT immunity, wholesale generators, retail providers, and 2021 winter storm lawsuits over grid failures and wrongful deaths.

Key Points

Houston judges held wholesale generators owe no duty to retail customers, limiting liability for 2021 blackout lawsuits.

✅ Court cites deregulated market and lack of privity to consumers

✅ Ruling shields generators from 2021 winter storm civil suits

✅ Plaintiffs plan appeals; legislature may address liability

Nearly three years after the devastating Texas blackout of 2021, a panel of judges from the First Court of Appeals in Houston has determined that major power companies cannot be held accountable for their failure to deliver electricity during the power grid crisis that unfolded, citing Texas' deregulated energy market as the reason.

This ruling appears likely to shield these companies from lawsuits that were filed against them in the aftermath of the blackout, leaving the families of those affected uncertain about where to seek justice.

In February 2021, a severe cold front swept over Texas, bringing extended periods of ice and snow. The extreme weather conditions increased energy demand while simultaneously reducing supply by causing power generators and the state's natural gas supply chain to freeze. This led to a blackout that left millions of Texans without power and water for nearly a week.

The state officially reported that almost 250 people lost their lives during the winter storm and subsequent blackout, although some analysts argue that this is a significant undercount and warn of blackout risks across the U.S. during severe heat as well.

In the wake of the storm, Texans affected by the energy system's failure began filing lawsuits, and lawmakers proposed a market bailout as political debate intensified. Some of these legal actions were directed against power generators whose plants either ceased to function during the storm or ran out of fuel for electricity generation.

After several years of legal proceedings, a three-judge panel was convened to evaluate the merits of these lawsuits.

This week, Chief Justice Terry Adams issued a unanimous opinion on behalf of the panel, stating, "Texas does not currently recognize a legal duty owed by wholesale power generators to retail customers to provide continuous electricity to the electric grid, and ultimately to the retail customers."

The opinion further clarified that major power generators "are now statutorily precluded by the legislature from having any direct relationship with retail customers of electricity."

This separation of power generation from transmission and retail electric sales in many parts of Texas resulted from energy market deregulation in the early 2000s, with the goal of reducing energy costs, and prompted electricity market reforms aimed at avoiding future blackouts.

Under the previous system, power companies were "vertically integrated," controlling generators, transmission lines, and selling the energy they produced directly to regional customers. However, in deregulated areas of Texas, competition was introduced, creating competing energy-generating companies and retail electric providers that purchase power wholesale and then sell it to residential consumers; meanwhile, electric cooperatives in other parts of the state remained member-owned providers.

Tré Fischer, a partner at the Jackson Walker law firm representing the power companies, explained, "One consequence of that was, because of the unbundling and the separation, you also don't have the same duties and obligations [to consumers]. The structure just doesn't allow for that direct relationship and correspondingly a direct obligation to continually supply the electricity even if there's a natural disaster or catastrophic event."

In the opinion, Justice Adams noted that when designing the Texas energy market, amid renewed interest in ways to improve electricity reliability across the grid, state lawmakers "could have codified the retail customers' asserted duty of continuous electricity on the part of wholesale power generators into law."

The recent ruling applies to five representative cases chosen by the panel out of hundreds filed after the blackout. Due to this decision, it is improbable that any of the lawsuits against power companies will succeed, according to the court's interpretation.

However, plaintiffs' attorneys have indicated their intention to appeal. They may request a review of the panel's opinion by the entire First Court of Appeals or appeal directly to the state supreme court.

The state Supreme Court had previously ruled that the Electric Reliability Council of Texas (ERCOT), the state's power grid operator, enjoys sovereign immunity and cannot be sued over the blackout.

This latest opinion raises the question of who, if anyone, can be held responsible for deaths and losses resulting from the blackout, a question left unaddressed by the court. Fischer commented, "If anything [the judges] were saying that is a question for the Texas legislature."

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Clean Electricity Standard (CES) sets utility emissions targets, uses tradable credits, and advances decarbonization via technology-agnostic benchmarks, carbon capture, renewable portfolio standards, upstream methane accounting, and cap-and-trade alternatives in reconciliation policy.

Key Points

CES sets utility emissions targets using tradable credits and benchmarks to drive power-sector decarbonization.

✅ Annual clean energy targets phased to 2050

✅ Tradable credits for compliance across utilities

✅ Includes upstream methane and lifecycle emissions

The Biden Administration and Democratic members of Congress have supported including a clean electricity standard (CES) in the upcoming reconciliation bill. A CES is an alternative to pricing carbon dioxide through a tax or cap-and-trade program and focuses on reducing greenhouse gas emissions produced during electricity generation by establishing targets, while early assessments show mixed results so far. In principle, it is a technology-agnostic approach. In practice, however, it pushes particular technologies out of the market.

The details of the CES are still being developed, but recent legislation may provide insight into how the CES could operate. In May, Senator Tina Smith and Representative Ben Ray Luján introduced the Clean Energy Standard Act of 2019 (CESA), while Minnesota's 100% carbon-free mandate offers a state-level parallel, and in January 2020, the House Energy and Commerce Committee released a discussion draft of the Climate Leadership and Environmental Action for our Nation’s (CLEAN) Future Act. Both bills increase the clean energy target annually until 2050 in order to phase out emissions. Both bills also create a credit system where clean sources of electricity as determined by a benchmark, carbon dioxide emitted per kilowatt-hour, receive credits. These credits may be transferred, sold, and auctioned so utilities that fail to meet targets can procure credits from others, as large energy customers push to accelerate clean energy globally.

The bills’ benchmarks vary, and while the CLEAN Future Act allows natural gas-fired generators to receive partial credits, CESA does not. Under both bills, these generators would be expected to install carbon capture technology to continue meeting increasing targets for clean electricity generation. Both bills go beyond considering the emissions resulting from generation and include upstream emissions for natural gas-fired generators. Natural gas, a greenhouse gas, that is leaked upstream of a generator during transportation is to be included among its emissions. The CLEAN Future Act also calls for newly constructed hydropower generators to account for the emissions associated with the facility’s construction despite producing clean electricity. These additional provisions demonstrate not only the CES’s inability to fully address the issue of emissions but also the slippery slope of expanding the program to include other markets, echoing cost and reliability concerns as California exports its energy policies across the West.

A majority of states have adopted clean energy, electricity, or renewable portfolio standards, with some considering revamping electricity rates to clean the grid, leaving legislators with plenty of examples to consider. As they weigh their options, legislators should consider if they are effectively addressing the problem at hand, economy-wide emissions reductions, and at what cost, drawing on examples like New Mexico's 100% clean electricity bill to inform trade-offs.

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NB Power Pulp and Paper Subsidies lower electricity rates for six New Brunswick mills using firm power benchmarks and interruptible discounts, while government mandates, utility debt, ratepayer impacts, and competitiveness pressures shape provincial energy policy.

Key Points

Provincial mandates that buy down firm electricity rates for six mills to a national average, despite NB Power's debt.

✅ Mandated buy-down to match national firm electricity rates

✅ Ignores large non-firm interruptible power discounts

✅ Raises equity concerns amid NB Power debt and rate pressure

An effort to fix NB Power's struggling finances that is supposed to involve a look at "all options" will not include a review of the policy that requires the utility to subsidize electricity prices for six New Brunswick pulp and paper mills, according to the Department of Natural Resources and Energy Development.

The program is meant "to enable New Brunswick's pulp and paper companies have access to competitive priced electricity,"  said the department's communications officer Nick Brown in an email Monday 

"Keeping our large industries competitive with other Canadian jurisdictions, amid Nova Scotia rate hike opposition debates elsewhere, is important," he wrote, knocking down the idea the subsidy program might be scrutinized for shortcomings like other NB Power expenses.

Figures released last week show NB Power paid out $9.7 million in rate subsidies to the mills under the program in the fiscal year ended in March 2021, even though the utility was losing $4 million for the year and falling deeper into debt, amid separate concerns about old meter issues affecting households.

Subsidies went to three mills owned by J.D. Irving Ltd. including two in Saint John and one in Lake Utopia, two owned by the AV group in Nackawic and Atholville and the Twin Rivers pulp mill in Edmundston.

The New Brunswick government has made NB Power subsidize pulp and paper mills like Twin Rivers Paper Company since 2012, and is requiring the program to continue despite financial problems at the utility. (CBC)
It was NB Power's second year in a row of financial losses, while it is supposed to pay down $500 million of its $4.9 billion debt load in the next five years to prepare for the refurbishment of the Mactaquac dam, a burden comparable to customers in Newfoundland paying for Muskrat Falls elsewhere under separate policies, under a directive issued by the province

NB Power president Keith Cronkhite said he was "very disappointed" with debt increasing last year instead of  falling and senior vice president and chief financial officer Darren Murphy said everything would be under the microscope this year to turn the utility's finances around.  

"We need to do better," said Murphy on Thursday

"We need to step back and make sure we're considering all options, including approaches like Newfoundland's ratepayer shield agreement on megaproject overruns, to achieve that objective because the objective is quickly closing in on us."

However, reviewing the subsidy program for the six pulp and paper mills is apparently off limits.

The subsidy program requires NB Power to buy down the cost of "firm" electricity bought by pulp and paper mills to a national average that is calculated by the Department of Natural Resources and Energy Development.

Last year the province declared the price mills in New Brunswick pay to be an average of  7.536 cents per kilowatt hour (kwh).  It is higher than rates in five other provinces that have mills, which the province points to as justification for the subsidies, even as Nova Scotia's 14% rate hike approval highlights broader upward pressure, although the true significance of that difference is not entirely clear.

In British Columbia, the large forest products company Paper Excellence operates five pulp and paper mills which are charged 17.2 per cent less for firm electricity than the six mills in New Brunswick.

The Paper Excellence Paper Mill in Port Alberni, B.C. pays lower electricity prices than mills in New Brunswick, a benefit largely offset by higher property taxes. It's a factor New Brunswick does not count in calculating subsidies NB Power must pay. (Paper Excellence)
However, local property taxes on the five BC mills are a combined $7.8 million higher than the six New Brunswick plants, negating much of that difference.

The province's subsidy formula does not account for differences like that or for the fact New Brunswick mills buy a high percentage of their electricity at cheap non-firm prices.

Not counting the subsidies, NB Power already sells high volumes of what it calls interruptible and surplus power to industry at deep discounts on the understanding it can be cut off and redeployed elsewhere on short notice when needed.

Actual interruptions in service are rare.  Last year there were none, but NB Power sold 837 million kilowatt hours of the discounted power to industry at an average price of 4.9 cents per kwh.   

NB Power does not disclose how much of the $22 million or more in savings went to the six mills, but the price was 35 per cent below NB Power's posted rate for the plants and rivaled firm prices big mills receive anywhere in Canada, including Quebec.

Asked why the subsidy program ignores large amounts of discounted interruptible power used by New Brunswick mills in making comparisons between provinces, Brown said regulations governing the program require a comparison of firm prices only.

"The New Brunswick average rate is based on NB Power's published large industrial rate for firm energy, as required by the Electricity from Renewable Resources regulation," he wrote.

The subsidy program itself was imposed on NB Power by the province in 2012 to aid companies suffering after years of poor markets for forest products following the 2008 financial collapse and recession.  

Providing subsidies has cost NB Power $100 million so far and has continued even as markets for pulp products improved significantly and NB Power's own finances worsened.

Report warned against subsidies
NB Power has never directly criticized the program, but in a matter currently in front the of the New Brunswick Energy and Utilities Board looking at how NB Power might restructure its rates, including proposals such as seasonal rates that could prompt backlash, an independent consultant hired by the utility suggested rate subsidies to large export oriented manufacturing facilities, like pulp and paper mills, is generally a poor idea.

"We do not recommend offering subsidies to exporters," says the report by Christensen Associates Energy Consulting of Madison, Wis.

"There are two serious economic problems with subsidizing exports. The first is that the benefits may be less than the costs. The second problem is that subsidies tend to last forever, even if the circumstances that initially justified the subsidies have disappeared."

The Christensen report did not directly assess the merits of the current subsidy for pulp and paper mills but it addressed the issue because it said in the design of new rates "one NB Power business customer has raised the possibility that their electricity-intensive business ought to be granted subsidies because of the potential to generate extra benefits for the Province through increases in their exports"

That, said Christensen, rarely benefits the public.

"The direct costs of the subsidies are the subsidies themselves, a part of which ends up in the pockets of out-of-province consumers of the exported goods," said the report.  

"But there are also indirect costs due to the fact that the subsidies are financed through higher electricity prices, which means that other electricity customers have less money to spend on services provided by local businesses, thus putting a drag on the local economy."

The province does not agree.

Asked whether it has any studies or cost-benefit reviews that show the subsidy program is a net benefit to New Brunswick, the department cited none but maintained it is an important initiative, even as elsewhere governments have offered electricity bill credit relief to ratepayers.

"The program was designed to give large industrial businesses the ability to compete on a level energy field," wrote Brown.
 

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China Power Demand-Emissions Gap highlights surging grid demand outpacing renewables, with coal filling shortages despite record solar, wind, EV charging, and hydrogen growth, threatening decarbonization targets and net-zero pathways through 2030.

Key Points

China's power demand outpaces renewables, keeping coal dominant and raising emissions risk through the 2020s.

✅ Record solar and wind still lag fast grid demand growth

✅ Coal fills gaps as EV charging and hydrogen loads rise

✅ Forecasts diverge: CEC bullish vs IEA, BNEF conservative

Here’s a new obstacle that could prevent the world finally turning the corner on climate change: Imagine that over the coming decade a whole new economy the size of Russia were to pop up out of nowhere. With the world’s fourth-largest electricity sector and largest burden of power plant emissions after China, the U.S. and India, this new economy on its own would be enough to throw out efforts to halt global warming — especially if it keeps on growing through the 2030s.

That’s the risk inherent in China’s seemingly insatiable appetite for grid power, as surging electricity demand is putting systems under strain worldwide.

From the cracking pace of renewable build-out last year, you might think the country had broken the back of its carbon addiction. A record 55 gigawatts of solar power and 48 gigawatts of wind were connected — comparable to installing the generation capacity of Mexico in less than 12 months. This year will see an even faster pace, with 93 GW of solar and 50 GW of wind added, according to a report last week from the China Electricity Council, an industry association.

That progress could in theory see the country’s power sector emissions peak within months, rather than the late-2020s date the government has hinted at. Combined with a smaller quantity of hydro and nuclear, low-emissions sources will probably add about 310 terawatt-hours to zero-carbon generation this year. That 3.8% increase would be sufficient to power the U.K.

Countries that have reached China’s levels of per-capita electricity consumption (already on a par with most of Europe) typically see growth rates at less than half that level, even as global power demand has surged past pre-pandemic levels in recent years. Grid supply could grow at a faster pace than Brazil, Iran, South Korea or Thailand managed over the past decade without adding a ton of additional carbon to the atmosphere.

There’s a problem with that picture, however. If electricity demand grows at an even more headlong pace, there simply won’t be enough renewables to supply the grid. Fossil fuels, overwhelmingly coal, will fill the gap, a reminder of the iron law of climate dynamics in energy transitions.

Such an outcome looks distinctly possible. Electricity consumption in 2021 grew at an extraordinary rate of 10%, and will increase again by between 5% and 6% this year, according to the CEC. That suggests the country is on pace to match the CEC’s forecasts of bullish grid demand over the coming decade, with generation hitting 11,300 terawatt-hours in 2030. External analysts, such as the International Energy Agency and BloombergNEF, envisage a more modest growth to around 10,000 TWh. 

The difference between those two outlooks is vast — equivalent to all the electricity produced by Russia or Japan. If the CEC is right and the IEA and BloombergNEF are wrong, even the furious rate of renewable installations we’re seeing now won’t be enough to rein in China’s power-sector emissions.

Who’s correct? On one hand, it’s fair to say that power planners usually err on the side of overestimation. If your forecast for electricity demand is too high, state-owned generators will be less profitable than they otherwise would have been — but if it’s too low, you’ll see power cuts and shutdowns like China witnessed last autumn, with resulting power woes affecting supply chains beyond its borders.

On the other hand, the decarbonization of China’s economy itself should drive electricity demand well above what we’ve seen in the past, with some projections such as electricity meeting 60% of energy use by 2060 pointing to a profound shift. Some 3.3 million electric vehicles were sold in 2021 and BloombergNEF estimates a further 5.7 million will be bought in 2022. Every million EVs will likely add in the region of 2 TWh of load to the grid. Those sums quickly mounts up in a country where electric drivetrains are taking over a market that shifts more than 25 million new cars a year.

Decarbonizing industry, a key element on China’s road to zero emissions, could also change the picture. The IEA sees the country building 25 GW of electolysers to produce hydrogen by 2030, enough to consume some 200 TWh on their own if run close to full-time.

That’s still not enough to justify the scale of demand being forecast, though. China is already one of the least efficient countries in the world when it comes to translating energy into economic growth, and despite official pressure on the most wasteful, so called “dual-high” industries such as steel, oil refining, glass and cement, its targets for more thrifty energy usage remain pedestrian.

The countries that have decarbonized fastest are those, such as Germany, the U.K and the U.S., where Americans are using less electricity, that have seen power demand plateau or even decline, giving new renewable power a chance to swap out fossil-fired generators without chasing an ever-increasing burden on the grid. China’s inability to do this as its population peaks and energy consumption hits developed-country levels isn’t a sign of strength.

Instead, it’s a sign of a country that’s chronically unable to make the transition away from polluting heavy industry and toward the common prosperity and ecological civilization that its president keeps promising. Until China reins in that credit-fueled development model, the risks to its economy and the global climate will only increase.

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Texas Deep Freeze Energy Crisis strains grids as polar vortex triggers rolling blackouts, record natural gas and electricity prices, refinery shutdowns, WTI gains, and scarcity pricing across Texas, Oklahoma, SPP, and Mexico.

Key Points

A polar vortex slamming Texas energy: outages, record power prices, gas spikes, and reduced oil output.

✅ Record gas trades near $500/mmBtu; power hits $6,000/MWh

✅ WTI tops $60 as Texas shuts in ~1 million bpd

✅ Rolling blackouts across SPP; ERCOT scarcity pricing

A deep freeze is roiling electricity markets in more than a dozen U.S. states, leading to record-setting prices for electricity and natural gas, knocking oil production off line and shutting down some of North America’s largest refineries.

“It’s freakishly cold,” said Eric Fell, a senior natural gas analyst with Wood Mackenzie in Houston, where record cold temperatures and snow have blanketed the city, caused rolling power outages, shut down refineries and sent both natural gas and electricity prices soaring.

'It’s freakishly cold': Deep freeze slams North American energy sector

The polar vortex has led to freezing temperatures in every county in Texas, the largest energy-producing state in the U.S., and caused massive disruptions across the North American energy complex, triggering Texas power outages as far south as Mexico.

As the plunge in temperatures forced oil companies to shut in an estimated one million barrels of oil production in Texas on Monday, the West Texas Intermediate benchmark price rose above the US$60 per barrel threshold for the first time in a year to settle up 1 per cent, or US65 cents, at US$60.12 per barrel.

President Joe Biden declared an emergency on Monday, unlocking federal assistance to Texas.

People carry groceries from a local gas station on Monday in Austin, Texas. Winter storm Uri has brought historic cold weather to Texas, causing traffic delays and power outages. 

Frozen wind farms are just a small piece of Texas’s power grid woes right now.

Fell said regional natural gas and electricity prices in Oklahoma and Texas broke U.S. records over the weekend.

On Friday, Oklahoma gas transmission prices averaged US$350 per million British thermal units and Fell said one trade went as high as US$600 per mmBtu. In parts of the Texas panhandle and elsewhere, prices jumped to US$200, “all of which individually would have been new records,” Fell said, noting the previous record was US$160.

On Monday, natural gas for physical delivery in the U.S. was trading for as much as US$500 per mmBtu as demand for the heating and power plant fuel soared.  Spot gas has been trading for hundreds of dollars across the central U.S. since Thursday with a surge in heating demand triggering widespread blackouts and sending electricity prices soaring. The fuel normally trades in the region for less than US$3 per mmBtu.

Similarly, electricity prices in Texas surged to US$6,000 per megawatt hour on Monday, as U.S. power companies grapple with supply-chain constraints, which Fell said is “100 times the normal price.”

“You’re seeing scarcity pricing in power and gas. The only thing that’s different this time is it’s staying there – it’s not just an hour or two hours, it’s the whole day,” he said.

The blast of Arctic cold, which has blanketed Canada and much of the U.S., has created a massive draw on natural gas supplies, used both for home heating and industrial uses like electricity generation.

Little Rock, Ark.-based Southwest Power Pool, which coordinates electricity distribution for parts of 14 states including Oklahoma Kansas, Nebraska and even as far north as North Dakota, announced rolling blackouts across its network on Monday as a result of the power outages.

“In our history as a grid operator, this is an unprecedented event and marks the first time SPP has ever had to call for controlled interruptions of service” SPP’s executive vice-president and chief operating officer Lanny Nickell said in a release, adding the move was “a last resort” to “prevent circumstances from getting worse.”

The frigid conditions have led to a surge in natural gas prices across the continent, including in Alberta where the AECO benchmark price jumped to a seven-year high of $6.36 per thousand cubic feet last week, a price not seen since 2014.

Energy systems in Texas and Oklahoma, which are major energy exporters to other U.S. states, are built to withstand severe heat – not extreme cold. The result is a disruption to the gas supply at exactly the time the U.S. energy system is demanding those molecules.

“Given how far south it’s gone into Texas, this is where you have a lot of gas production that isn’t properly winterized,” said Jeremy McCrea, an analyst with Raymond James covering the natural gas industry.

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